Citation Nr: 1533537
Decision Date: 08/06/15 Archive Date: 08/20/15
DOCKET NO. 09-35 047 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for a left ankle disorder.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Donna D. Ebaugh, Counsel
INTRODUCTION
The Veteran served on active duty from July 1972 to September 1978.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington.
The case was previously remanded by the Board in February 2013 for further development. The additional development was completed, but raised additional questions for the Board. As a result, in January 2015, the Board requested an opinion from an independent medical expert (IME) pursuant to 38 C.F.R.
§ 20.901(d) (2014). An IME opinion was received in March 2015 and incorporated into the record. The Veteran and his representative were provided copies of the IME opinion in April 2015. While the Veteran's copy of the IME opinion was returned as undeliverable despite being sent to his address of record, his representative provided a response to the IME opinion in June 2015.
The Board notes that in addition to the Veteran's paper claims file, there are paperless, electronic files associated with his claim (Virtual VA and Veterans Benefits Management System (VBMS)). The documents in Virtual VA as well as those contained in VBMS are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
FINDING OF FACT
An additional disability of the left ankle did not result from carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA, or an event that was not reasonably foreseeable.
CONCLUSION OF LAW
The criteria for entitlement to compensation under the provisions of 38 U.S.C.A.
§ 1151 for a left ankle disorder are not met. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.361 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Due Process Considerations
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2014). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.
In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, letters dated in December 2008 and February 2009, sent prior to the unfavorable decision issued in April 2009, advised the Veteran of the evidence and information necessary to substantiate his claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the February 2009 letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.
The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. Pertinent evidence associated with the record consists of the Veteran's service treatment records, VA outpatient treatment records, Social Security Administration records, and the report of the March 2015 IME opinion. The Veteran has not identified any additional, outstanding records that have not been requested or obtained.
As indicated previously, in February 2013, the Board remanded the case for additional development, to include obtaining outstanding SSA and VA treatment records, and directing the AOJ to consider the Federal Circuit's holding in Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013) that a plain reading of the language of 38 U.S.C.A. § 1151 does not impose any requirement that a Veteran's additional disability was "directly" caused by the "actual provision" of medical care by VA employees. As discussed in the preceding paragraph, such records were obtained. Furthermore, while Viegas was not specifically cited in the March 2013 supplemental statement of the case, the AOJ considered the general principles of such law in readjudicating the Veteran's claim. Therefore, the Board finds that the AOJ has substantially complied with the February 2013 remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).
The Board further finds the March 2015 IME opinion to be adequate as the examiner reviewed the file and discussed the series of VA actions and inactions that the Veteran contends caused an additional left ankle disability. The Board acknowledges the Veteran's representative's contention that the examiner did not directly answer the questions as presented in the Board's letter; however, the IME addressed the each of the contended VA faults and offered sufficient explanation for the Board to make the determination that the VA treatment did not cause an additional left ankle disability. The Board also acknowledges that the IME opinion did not directly address whether the Veteran's left ankle disability was a foreseeable consequence of the VA treatment; however, as the Board has determined that the VA treatment did not cause any additional disability, the question regarding foreseeability is moot and it was not necessary for the IME opinion to address the question. For these reasons, the Board finds that the IME opinion substantially complied with the Board's request and offers a sufficient opinion with rationale so as to allow the Board to adjudicate the instant matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).
In summary, the duties imposed by the VCAA have been satisfied. Through notice by the AOJ, the Veteran has been made aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters herein decided. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).
II. Entitlement to Compensation under 38 U.S.C.A. § 1151
Governing law and regulation provides that a Veteran may be awarded compensation for additional disability, not the result of his willful misconduct, if the disability was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by VA, either by a VA employee or in a VA facility as defined in 38 U.S.C.A. § 1701(3)(A), and the proximate cause of the disability was (1) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment, or examination, or (2) an event not reasonably foreseeable. 38 U.S.C.A. § 1151. See also 38 C.F.R. § 3.361(c), (d)(1), (d)(2).
To determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, or examination to the Veteran's condition after such care, treatment, or examination has stopped. 38 C.F.R. § 3.361(b) (2014). VA considers each involved body part or system separately. Id.
In Viegas v. Shinseki, the Federal Circuit noted that section 1151 delineates three prerequisites for obtaining disability compensation. First, a putative claimant must incur a "qualifying additional disability" that was not the result of his own
"willful misconduct." 38 U.S.C. § 1151(a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the Veteran" by VA or in a VA facility. Finally, the "proximate cause" of the Veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part" of VA, or "an event not reasonably foreseeable." See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); § 1151(a)(1)(A), (a)(1)(B). Thus, section 1151 contains two causation elements-a Veteran's disability must not only be caused by the hospital care or medical treatment he received from VA, but also must be proximately caused by the VA's fault or an unforeseen event.
However, section 1151 does not extend to the "remote consequences" of VA medical treatment, and a Veteran is not entitled to obtain section 1151 disability benefits simply because he was in a VA medical facility at the time he sustained an injury. Viegas, supra, citing Brown v. Gardner, 513 U.S. 115, 119, 115 S. Ct. 552, 130 L.Ed.2d 462 (1994). In Viegas, the Federal Circuit Court stated that "Congress intended to encompass not simply the actual care provided by VA medical personnel, but also treatment-related incidents that occur in the physical premises controlled and maintained by the VA." Id., at 1378 (Fed. Cir. 2013).
In determining whether the Veteran's disability was actually caused by VA hospital care or medical treatment, only a causal connection, and not direct causation, is required. Viegas, 705 F.3d at 1380; see also Brown v. Gardner, 513 U.S. 115, 119 (1994). However, a mere showing of additional disability following the receipt of VA care, treatment, or examination will not establish cause; the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 38 C.F.R. § 3.361(c)(1).
The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's, informed consent. 38 C.F.R. § 3.361(d)(1).
Whether the proximate cause of a Veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361(d)(2). The event need not be completely unforeseeable or unimaginable, but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. Id. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2).
Here, for the reasons discussed below, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for claimed additional disability of the left ankle due to the series of alleged faults on the part of VA, as the evidence does not show that the VA omissions and commissions caused any additional disability. See Viegas, 705 F.3d 1380; 38 C.F.R. § 3.361(c)(1); see also 38 U.S.C.A. § 1151(a).
Factual Background
The Veteran asserts that he has incurred an additional disability of the left ankle due to improper care and treatment by VA. Prior to October 2007, the record is devoid of any treatment or complaints regarding the left ankle.
On October 12, 2007, the Veteran initially sought treatment for severe pain in his left lower extremity that radiated to his upper thigh. He reported onset of symptoms was 10 days earlier and denied any injury. He also reported a burning sensation and that he could not tolerate weight-bearing. Objective findings noted that the Veteran had pain to midcalf with squeeze and tender to palpation with weight-bearing. The VA medical personnel also noted that the Veteran's pulses were intact and that there was no unilateral swelling or discoloration. The assessment/plan was to send the Veteran to another VA medical center for vascular testing. He was sent via ambulance. The vascular testing was negative for deep vein thrombosis. The Veteran was given an injection of pain medication and muscle relaxer and instructed to follow up with his primary care physician in a few days or to seek treatment sooner if the pain worsened.
Three days later, on October 15, 2007, the Veteran was seen for a follow-up primary care appointment at a VA medical center. At that time, he presented in a wheelchair and reported that cramping had not gone away. He also reported pain located along the lateral aspect of the left leg, that his toes were numb and/or tingling, and that he had a spot in the left buttock which hurt. He reported that pressure on one of the quads on the left intensified pain in the left lower extremity. The assessment/plan was to obtain an x-ray of the back for the left lower extremity pain as well as laboratory work, and return to the clinic in six months or sooner if needed. Later that same day, he was treated again. He reported that pain was progressively worse and that he was having significant difficulty with ambulation secondary to pain. He denied any injury to the leg. He reported that his foot felt cold with numbness and tingling and that he had not had a previous episode. The assessment was left lower extremity pain with unclear etiology; possible muscular strain versus Raynaud's versus unidentified vascular thrombosis. The Veteran was given an injection of Toradol 60mg IM x 1. An October 16, 2007 VA report noted that the Veteran's lab results were abnormal.
Thereafter, the Veteran reports that on Sunday, October 21, 2007, he awoke with severe left ankle pain. He reports that when he took his first step out of bed, on to his left ankle, he fell to the ground in excruciating pain. He reported that he was unable to find a comfortable position either prone or sitting, and was not able to find a modicum of relief. He reported that he was literally forced to drag himself using his arms, anywhere that he needed to go. He reported that he was sure that his ankle must have been broken. See Veteran's April 2009 written statement. He reported that because it was a weekend, he did not seek treatment until October 24, 2007.
VA treatment records reflect that the Veteran called the VA medical center on October 24, 2007 indicating that he needed treatment for his left ankle but that he had no way of getting to the VA medical center that day. He received instructions over the phone regarding self-care for the ankle pain. Later that evening, the Veteran drove himself to the VA medical center for emergency care. He submitted written statements indicating that he had to park approximately 100 yards from the entrance to the medical center and that he crawled the entire distance as he could not bear weight on the ankle.
The treating physician on October 24, 2007, assessed left ankle sprain versus tendon tear and sent the Veteran to undergo X-rays of the left ankle. The Veteran reports that the technician took an X-ray of his hip instead. VA treatment records confirm that he underwent lumbar spine X-rays for pain that radiated to the left lower extremity at that time. Of note, the Veteran has offered written statements indicating that the physician who treated him on October 24, 2007, did not accurately record the Veteran's reported history of the left ankle pain. Specifically, the physician noted that the Veteran's left ankle pain began 3 weeks ago; however, the Veteran reports that he informed the physician that the left ankle pain began 3 days earlier.
The October 24, 2007 VA physician referred the Veteran for orthopedics or sports medicine but the Veteran was not treated again for the left ankle until March 2008. The March 2008 VA treatment record indicates that the Veteran was being seen that day following a letter he wrote to the White House complaining of his lack of treatment. Non weight-bearing X-rays were taken and indicated a loose body between the fibula and talus. The March 2008 VA physician noted that the Veteran's symptoms could be related to the loose body.
Subsequently, the Veteran underwent an orthopedic consult in April 2008. At that time, he reported that he had previously been using an over-the-counter brace. It was noted that the Veteran reported that he feels like his left foot points more medially than it did before, with occasional inversion of the foot. The physician noted that the Veteran's self-care was likely to have been insufficient to allow for complete healing of the ligament and prescribed a sturdier ankle brace that he should use for six weeks. The physician also reviewed the nonweight-bearing X-rays from March 2008 and determined that such did not show any concerning loose bodies. Weight-bearing X-rays were taken and the VA clinician noted that the X-rays were consistent with the March 2008 X-rays. Specifically, he noted that the April 2008 X-rays "are identical in appearance to those nonweightbearing views of [March 2008] and are normal. There is no evidence of instability, cartilage loss, or other abnormality."
VA outpatient treatment records indicate that the Veteran underwent physical therapy from early May 2008 to late June 2008. The June 2008 physical therapy discharge summary noted that the Veteran reported some improvement in his pain level in that he was able to maintain pain rated at 4 out of 10, and that he was hopeful that he would fully recover.
In February 2009, the Veteran incurred another injury involving the left ankle. He reported that his left ankle buckled and he fell. He hit his head and, according to his wife, was unconscious for three to five minutes. A February 2009 VA treatment record regarding the event noted the Veteran's past medical history of chronic ankle weakness as well as the Veteran's report that his ankle was "fine" following the fall. Approximately one week later, he again sought treatment and reported that his ankle was swollen and hurting, and that it had begun to hurt a few days previously. The assessment was a left ankle sprain.
The Veteran contends that, through a series of VA faults, he has incurred additional disability to the original left ankle disorder. Specifically, he alleges that VA did not exercise proper care in diagnosing or treating his initial left lower extremity complaints on October 12, 2007 when VA medical professionals focused on whether there was deep vein thrombosis, but did not address whether there was a fracture, particularly when negative test results returned regarding the suspected DVT. He also contends that when he sought treatment again on October 24, 2007, he was not provided with proper care so that he could avoid walking 100 yards on his injured ankle. Further, he contends that the failure of the October 24, 2007 X-ray technician to perform the appropriate X-ray led to worsening of the ankle condition as he was not provided with a cast or treatment other than home care instructions. He also asserts that the delay between the October 2007 treatment and the March 2008 treatment caused additional injury to the left ankle. In particular, the Veteran contends that the injury which occurred in February 2009 would not have happened if his ankle had been properly diagnosed and treated the first time he sought treatment in October 2007. See Veteran's April 2009 statement. He also contends that, as a result of the additional injury, he now experiences a significant problem with mobility, increased pain, and further reduced quality of life. He asserts that he now has chronic pain and muscle discomfort due to the use of the ankle brace prescribed by VA. Further, he reports that he has emotional problems as a result of the chronic pain.
In support of the Veteran's claim, his friend submitted a letter reporting that the Veteran had planned to visit the friend's business in October 2007 but did not show up. The friend contacted the Veteran in November 2007 and the Veteran reported that he thought he had broken his ankle. The friend reported that the Veteran's voice sounded like he was exhausted and about to cry due to pain. The friend went to visit the Veteran and observed that the Veteran was in bed and could hardly roll over without extreme pain and even crawled to use the bathroom. The friend saw the Veteran again at Christmas and reported similar observations. See June 2009 letter from R.M.
Analysis
As an initial matter, the Board finds that the Veteran does not have an additional left ankle disability as a result of VA treatment. As discussed above, when determining whether there is an additional disability, the Board looks to the condition immediately prior to treatment as compared with the condition following treatment. Here, there are no records indicating a left ankle diagnosis prior to the initial left leg treatment in October 2007 but the Veteran complained of significant left ankle pain immediately prior to VA treatment in October 2007. Indeed, the Veteran argues that VA owes compensation under section 1151 because VA allegedly initially misdiagnosed his complaints and overlooked a left ankle condition when VA physicians evaluated him for DVT. See June 2012 Representative's statement.
Moreover, the IME opinion noted that X-rays taken in 2008 demonstrated that the Veteran's ankle was "essentially unremarkable" except for the one X-ray report of a loose body. The IME opinion further observed that the loose body could certainly cause the Veteran's pain with ambulation, weight-bearing, and pain in the ankle. Such finding is consistent with the March 2008 VA physician's notation that the loose body could be the cause of the Veteran's ankle symptoms. Notably, the Veteran has complained of substantially the same ankle symptoms all along, prior to VA treatment as well as following VA treatment.
The Veteran has offered statements of significant left leg pain and numbness in the left foot as well as excruciating left ankle pain, all in October 2007, when he began the VA treatment in question. There is no indication that the Veteran's ankle disorder underwent any change as a result of the VA treatment. In this regard, the Veteran's description of the excruciating pain and having to crawl 100 yards to the VA facility in October 2007, are substantially the same as his statements describing pain and instability following VA treatment.
The Board has also considered the Veteran's contentions that his left ankle was not properly diagnosed when he initially sought treatment in October 2007, and that because he had to walk or crawl 100 yards on an injured ankle during a subsequent visit in October 2007, the ankle was not X-rayed, and he had to wait approximately six months to begin occupational (or physical) therapy, he sustained an additional left ankle disability. The Board notes his specific contention that he had a left ankle disability which healed incorrectly due to the time between treatment for the left ankle and beginning physical therapy, which resulted in limited mobility. See September 2009 statement.
The Board has considered whether the Veteran may have had an injured ligament that did not heal properly and whether that would have caused additional disability. However, the Board finds that even if he had an injured ligament that did not heal properly between October 2007 and March 2008, it did not cause additional disability. In this regard, the Board emphasizes that the Veteran's left ankle was found to be normal on X-ray in April 2008. The Board places a high value on the interpretation of the April 2008 VA physician who opined that the X-rays were normal as that interpretation was made in connection with an orthopedic consult by the physician who wrote the report and reviewed the Veteran's condition with another physician. Even if the Board accepts the March 2008 VA urgent care physician's impression of a loose body in the left ankle, there is no indication that the loose body developed as a result of VA treatment. Again, the April 2008 X-rays were normal and did not indicate that there was any permanent disability of the ankle, much less a disability caused by VA treatment, including self-care instructions following the October 2007 ankle treatment.
Further, the evidence does not support a finding that the incorrect X-ray of the right hip rather than the left ankle in October 2007 during visit where the Veteran crawled or walked 100 yards due to ankle pain, caused the Veteran to develop a left ankle disability. In this regard, the IME noted that subsequent X-rays did not indicate that there had ever been a left ankle fracture.
Additionally, the April 2008 VA physician prescribed a sturdier ankle brace and referred the Veteran for physical therapy. The evidence indicates that in June 2008, the ankle disorder had actually improved following physical therapy. Thus, the evidence is against a finding that the VA physical therapy that took place in May 2008 and June 2008 caused any additional left ankle disability. The IME noted that the 2008 VA orthopedist's prescription of the sturdier left ankle brace would not have caused the Veteran to develop a left ankle disability.
Moreover, VA treatment records dated in June 2008 indicate that the Veteran's left ankle symptoms improved with VA physical therapy. Significantly, the IME opinion noted that X-rays taken in 2008 did not indicate that the Veteran had ever had a fractured the left ankle. The Veteran contends that he had a left ankle disability in October 2007 that was essentially missed by VA because he was treated to rule out DVT rather than treated for an ankle condition. However, as X-rays show that he never had a left ankle fracture, and the April 2008 X-rays were normal, there is no support for a finding that the left ankle disability began or worsened, following VA treatment. In this regard, the Board finds that the weight of the evidence is against finding that the Veteran developed the loose body in the ankle as a result of VA treatment, or lack thereof. The Board acknowledges the Veteran's statements regarding pain and muscle discomfort due to the ankle brace (April 2009 statement); however, pain, in and of itself, is not a disability. See Sanchez-Benitez v. West, 25 F.3d 1356 (Fed. Cir. 2001).
In reaching the conclusion that there is no additional left ankle disability, the Board has considered the lay evidence of record. The Board acknowledges the Veteran's friend, J.M.'s statement that he observed the Veteran in considerable pain in November 2007 and again in December 2007. Such observations are consistent with the pain described by the Veteran regarding the treatment in October 2007 in which he crawled 100 yards from the parking lot to the facility. However, these statements do not demonstrate that an additional left ankle disability manifested following the VA treatment.
The Board finds that, while the Veteran and his friend are competent to report observations of left ankle symptoms that come to them through their senses, they are not competent to diagnose a left ankle disability or determine its etiology. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011), as to the specific issue in this case, whether a loose body of the left ankle underwent an increase due to specific treatment or lack thereof, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Board places no probative value on the Veteran's statements, or J.M.'s statements, regarding the diagnosis of any left ankle disorder or etiology of the same.
The Board reiterates that a mere showing of additional disability following the receipt of VA care, treatment, or examination will not establish cause of any additional disability; the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the Veteran's additional disability. 38 C.F.R. § 3.361(c)(1). Here, the evidence does not demonstrate that there was any additional disability, much less an additional disability caused by VA treatment, or lack thereof. As such, it is unnecessary to discuss the other requirements for compensation under § 1151, i.e., fault by VA or unforeseeable circumstance. See 38 C.F.R. § 3.361. The IME opinion did find, however, that there was no negligence, or similar fault, on the part of VA.
As noted above, the Board does not reach the issue of whether the alleged additional ankle disability was a foreseeable event, as the evidence does not indicate that the Veteran has an additional ankle disability following VA treatment.
In sum, there is no indication that the Veteran developed an additional disability as a result of VA treatment, care, or lack thereof. As such, the preponderance of the evidence is against the existence of additional disability in left ankle as a result of VA care or treatment since October 2007. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R.
§ 3.102.
ORDER
Entitlement to compensation under 38 U.S.C.A. § 1151 for a left ankle disorder is denied.
____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs